Appeal from Circuit Court of Champaign County No. 07CF488 Honorable Harry E. Clem, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice McCullough concurred in the judgment and opinion.
In December 2007, a jury found defendant, Craig J. Blanton, guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). In January 2008, the trial court vacated the aggravated-robbery conviction under the one-act, one-crime rule and sentenced defendant to 25 years' imprisonment on his armed-robbery conviction. Defendant appealed, arguing (1) the 25-year sentence violated the proportionate-penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), (2) the court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), and (3) the court improperly considered the class of the victim as a college student as an aggravating sentencing factor.
On June 17, 2009, this court issued an opinion finding the trial court had erred by failing to comply with Rule 431(b) by neglecting to question each venireperson as to whether he or she understood and accepted the principle that defendant's failure to testify could not be held against him. People v. Blanton, No. 4-08-0120, slip op. at 10 (June 17, 2009), reh'g granted (July 17, 2009). This court found such error constituted plain error because the failure to advise the jurors that defendant's failure to testify could not be held against him was " 'so substantial that it affected the fundamental fairness of the proceeding.' " Blanton, slip op. at 9, ___ Ill. App. 3d at ____ (quoting People v. Hall, 194 Ill. 2d 305, 335 (2000)), reh'g granted (July 17, 2009).
One day later, on June 18, 2009, the supreme court issued its decision in People v. Glasper, 234 Ill. 2d 173 (2009). The Glasper case involved the former version of Rule 431(b), which required inquiry into the principles articulated by People v. Zehr, 103 Ill. 2d 472, 477 (1984), only upon the defendant's request. Glasper, 234 Ill. 2d at 189. In Glasper, the supreme court held that a harmless-error analysis applied to the trial court's error in refusing, upon defense counsel's request, to ask the potential jurors whether they understood and accepted the principle that the defendant's exercise of his right not to testify could not be held against him. Glasper, 234 Ill. 2d at 189. Applying that analysis, the supreme court found that the evidence of the defendant's guilt was overwhelming and that the error was harmless. Glasper, 234 Ill. 2d at 202.
On July 8, 2009, the State filed a petition for rehearing, asking this court to reconsider its holding in light of Glasper. On July 17, 2009, this court granted the petition for rehearing and later determined that, because Glasper did not change the result, the trial court's judgment was reversed and the cause was remanded for a new trial. People v. Blanton, 396 Ill. App. 3d 230, 232 (November 10, 2009).
In January 2011, the supreme court issued a supervisory order (People v. Blanton, 239 Ill. 2d 558 (2011) (nonprecedential supervisory order on denial of petition for leave to appeal) (No. 109586)) directing this court to vacate our judgment and to reconsider in light of People v. Thompson, 238 Ill. 2d 598 (2010). In accordance with the supreme court's directions, we vacate our prior judgment and reconsider in light of Thompson to determine whether a different result is warranted. After such consideration, we now affirm defendant's conviction on the Rule 431(b) issue, and consider defendant's other contentions of error for the first time. After doing so, we vacate defendant's sentence and remand with directions.
In March 2007, the State charged defendant by information with armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). Each count included the element that defendant was armed with a firearm during the commission of the offense. In April 2007, the grand jury returned a true bill on both counts. The charges stemmed from the following facts. The victim, a University of Illinois student, was approached from behind by two males as she stood at her apartment door trying to enter. One man held a gun to her head and both demanded her money. She described both as wearing baggy pants with white shoes, hoods, and shirts covering their faces up to their eyes. One of the suspects wore light blue shoelaces in his shoes. They took her keys and two cellular telephones and fled. A witness approaching the same apartment complex saw two black men running away from the building. She described the men's clothing as the victim had. Defendant was arrested a few blocks away from the scene, wearing white shoes with light blue shoelaces.
At the start of defendant's jury trial, on December 13, 2007, the trial court conducted a voir dire examination of the venire. The court advised the venire as a whole that (1) the State has the burden of proof and must prove defendant guilty beyond a reasonable doubt; (2) defendant was presumed innocent of the charges brought against him; and (3) defendant did not have to present evidence unless he chose to do so. With each panel of venirepersons seated in the jury box, the court either (1) again (a) explained the principles that the State bore the burden of proof beyond a reasonable doubt, defendant was presumed innocent, and defendant did not have to present any evidence unless he chose to do so, or (b) stated that the venire had previously heard several legal propositions explained during the voir dire; and (2) asked each panel of venirepersons whether he or she understood and supported those principles. Each venireperson ultimately selected as a juror answered "yes."
Defense counsel also questioned several members of the venire about the same principles addressed by the trial court: that defendant was presumed innocent, the State must prove defendant guilty beyond a reasonable doubt, and defendant was not required to offer evidence on his behalf. Defense counsel asked one venireperson, ultimately selected for the jury, whether he understood that if defendant chose not to present any evidence, the venireperson could not hold that against defendant. The venireperson answered "Right." Defense counsel asked another venireperson, also ultimately selected for the jury, whether he understood that defendant did not have to "say anything or prove that he did not commit" the crime but that the State must prove that defendant committed the crime. The venireperson answered "Yes."
The case proceeded to trial. Defendant presented no evidence and did not testify. At the jury-instruction conference, the State tendered a set of jury instructions but withdrew the instruction that charged the jury to judge defendant's testimony in the same manner as the testimony of any other witness. See Illinois Pattern Jury Instructions, Criminal, No. 1.02 (4th ed. 2000) (hereinafter IPI Criminal 4th). Defense counsel did not object to withdrawing that instruction or tender the instruction that the jury should not consider the fact that defendant did not testify. See IPI Criminal 4th No. 2.04 ("[t]he fact that [the] defendant did not testify must not be considered by you in any way in arriving at your verdict"). The trial court did not instruct the jury that defendant's failure to testify could not be considered.
The jury found defendant guilty of aggravated robbery and armed robbery while armed with a firearm. As stated above, in January 2008, the trial court vacated the aggravated-robbery conviction under the one-act, one-crime rule and sentenced defendant to 25 years' imprisonment for armed robbery. At sentencing, the court noted that 15 years was required to be added to defendant's sentence under ...